If misleading advertising can be linked to childhood disease, Coale says, "you've got yourself not only a lawsuit but a movement." Food industry insiders have already come forward to speak to Coale about disturbing marketing practices, he claims. "We're not bringing down the fast-food industry next Tuesday," he says, "but there are legitimate legal issues here."
Hirsch's case, say many plaintiffs lawyers, is like the earliest tobacco and asbestos cases, which failed because the damning evidence had not yet come out. But once cases progress into the discovery stage, smoking-gun documents may begin to emerge, showing that the companies knew more than the general public about the impact that their products and advertising were having on children's health. Tort reform advocate Schwartz does not doubt this. "As discovery goes forward," Schwartz explains, "plaintiffs lawyers will be finding documents that, if held up in isolation, make it look like the industry had something to hide. That gives the case heft." Schwartz predicts that it will take about five years to reach that point.
Not everyone on the defense side is as fatalistic as Schwartz. Thomas Bezanson of New York's Chadbourne & Parke, who has defended tobacco, alcohol, and pharmaceutical companies, thinks that what happened to the tobacco industry was unique. "You had a very powerful attack made by the plaintiffs bar, the press, the politicians, and the state attorneys general," he says. "That only works if you are able to use all of those in a coordinated way to persuade society that the object of attack is some kind of pariah. I doubt that kind of attack can be lodged against food companies.